This memorandum is submitted by the Home Office
in response to the request for comments on the Hunting Bill in
a letter from the chairman of the Joint Committee on Human Rights
to the Home Secretary of 14 February 2001.

INTRODUCTION

2. The Home Secretary has made a statement
under section 19(1)(a) of the Human Rights Act 1998 indicating
that, in his view, the provisions of the Bill are compatible with
the convention rights. He believes that, where the Convention
rights are engaged, the proposals are proportionate to the legitimate
aim pursued and the judgments that have been made about the balance
to be struck between competing rights and responsibilities can
be objectively justified.

3. The jurisprudence of the European Court
of Human Rights,[4]
and the early jurisprudence of the English courts on the Human
Rights Act 1998,[5]
has established that the legislature and the executive have a
margin of discretion in forming a view as to whether particular
measures are justified within the terms of those articles of the
ECHR which permit of exceptions.

4. Certain provisions contained in the Bill
as introduced in the House of Commons confer discretionary powers
on public authorities. In the Government's view, all these powers
are capable of being exercised in a way which is compatible with
the Convention. Those on whom these powers are conferredthe
Hunting Authority, the Secretary of State, the police and the
courtswill be obliged by section 6 of the Human Rights
Act 1998 to exercise them in a way which is compatible with the
Convention rights.

BACKGROUND

5. Because of the unusual format of the
Bill as introduced in the House of Commons, it may be helpful
to the Committee to provide some background to the Bill and its
structure.

6. The controversial issue of hunting wild
mammals with dogs has been the subject of much discussion, debate
and demonstration over the years. There have been 22 Private Member's
Bills relating to hunting with dogs introduced in the past 20
years. It is an issue on which the Government remains neutral.

7. In December 1999, a committee chaired
by Lord Burns was appointed to carry out an inquiry into hunting
with dogs in England and Wales. The Committee was asked to inquire
into the practical aspects of hunting with dogs of foxes, deer,
hares and mink. The Committee was not asked to recommend whether
hunting with dogs should be banned.

8. Following publication of the report of
the Committee ("the Burns Report") in June 2000, (Cm4763),
the Government announced that it would bring forward a Bill so
as to enable Parliament to have a proper opportunity to give legislative
effect to its wishes on the issue of hunting with dogs. The Bill
is intended to resolve the issue once and for all.

9. The Bill as introduced in the House of
Commons on 8 December 2000, contained three self-contained, mutually
exclusive schedules providing for, respectively, self-regulation
of hunting (Schedule 1), regulation of hunting through a licensing
authority (Schedule 2) and prohibition of hunting (Schedule 3).
The House of Commons (in Committee of the whole House) on a free
vote chose the option providing for prohibition, Schedule 3, which
was subsequently debated in Standing Committee.

10. The Bill as introduced in the House
of Lords on 28 February 2001 contains one Schedule. The Government
has made a commitment to table amendments to the Bill which will
enable the House of Lords to have the same choice between the
three options as the House of Commons had.

11. For the purposes of this Memorandum,
the Bill is assumed to contain the three Schedules as described
in paragraph 9 above. The remainder of the Memorandum deals with
the specific questions on the Bill raised by the Committee.

OPTION 2: REGULATIONBYTHE
HUNTING AUTHORITY

1. The implications for the right to property
and possessions of people wishing to hunt on their own land.

(a) Please would you inform the Committee
of your reasons for being satisfied that Option 2 is compatible
with ECHR Article 1 of Protocol No 1 notwithstanding the absence
of provision to pay compensation for interference with people's
enjoyment of their property.

THE LICENSING
SYSTEM

12. Schedule 2 to the Bill as introduced
in the House of Commons establishes an independent Hunting Authority
to regulate hunting through a licensing system. The constitution
and functions of the Authority are set out in detail in Parts
I to III of Schedule 2. The composition of the Authority is intended
to ensure its impartiality and independence.

13. The Authority is responsible for issuing
hunting licences and drawing up codes of practice dealing with
the various kinds of regulated hunting. By paragraph 39(1) of
Schedule 2, each code of practice must in the Authority's opinion
be designed to improve or protect animal welfare, protect the
safety of members of the public, and discourage trespass. (The
Burns Committee identified in chapter 9 of their report certain
hunting practices which were of concern for animal welfare reasons,
and also expressed concern for the many instances of trespass,
disruption and disturbance caused by hunts. Schedule 2 is intended
to address these concerns while protecting the right to hunt.)

14. A person who wishes to hunt wild mammals
with dogs on his own land must hold a licence, or participate
in a licensed hunt, in the same way as any other person. Hunting
licences are granted on the basis of the applicant's suitability
and competence. A licence will only be refused or revoked if a
person is not considered to be suitable or sufficiently competent.

15. The Authority has the power to grant,
refuse, vary, suspend or revoke hunting licences. Any such determination
by the Authority is subject to a right of appeal to the magistrates'
court. The court may make such order as it thinks appropriate,
in particular it may direct the Authority to issue, or vary the
terms of, a hunting licence.

16. Certain forms of hunting with dogs are
not subject to the licensing regimethese are classified
as "unrestricted" and are set out in Part VI of Schedule
2. These activities tie in with the exceptions from the prohibition
on hunting set out in Part II of Schedule 3. The Committee may
be aware that certain amendments to Part II of Schedule 3 were
accepted at Report stage in the House of Commons. These amendments
will be reflected in Part VI of Schedule 2 as it will appear in
the amendment to be tabled in the House of Lords (as explained
at paragraph 10 above). Thus "unrestricted" hunting
activities for the purpose of Schedule 2 (as it will appear in
the amendment to be tabled in the House of Lords) will be:

(i) deer stalking;

(ii) rodent and rabbit hunting;

(iii) stalking and flushing out of foxes
and hares for certain purposes;

Any landowner will therefore be able to conduct
such activities without a licence, and without participating in
a licensed hunt, as they will be outside the scope of the licensing
regime.

17. The Bill (and therefore the licensing
system provided for in Schedule 2) is only concerned with hunting
wild mammals with dogs. It does not affect hunting activities
conducted without dogs, such as shooting, nor does it affect activities
directed towards other classes of animal, such as game birds.

HUMAN RIGHTS
COMPATIBILITY

18. The Government is satisfied that Schedule
2 is compatible with Article 1 of Protocol 1 ECHR notwithstanding
that there is no provision for the payment of compensation to
a landowner who is refused a hunting licence or who has his licence
revoked.

19. The Government is satisfied that the
right to pursue a leisure activity is not a "possession"
for the purposes of Article 1 of Protocol 1.[6]
In relation to possessions such as land, the Government is satisfied
that any interference with a person's peaceful enjoyment of their
possessions through the licensing system provided for in Schedule
2 constitutes a control of use of property and does not involve
any deprivation of possessions.

20. A landowner's ability to conduct certain
hunting activities on his own land will be dependent on his obtaining
a hunting licence or participating in a licensed hunt. The licensing
system is designed to ensure that those who conduct certain hunting
activities are suitable and competent to do so, and that they
comply with standards of acceptable behaviour set out in codes
of practice. Certain forms of hunting with dogs will remain unrestricted,
therefore any landowner (whether or not he holds a licence) will
be able to conduct such activities. Hunting activities which do
not involve the use of dogs, or which are not directed at wild
mammals, will be unaffected as they are outside the scope of the
Bill and therefore the licensing system. In addition, the land
affected can continue to be used for other purposes such as drag
hunting, or other equestrian and non-equestrian activities.

21. As mentioned above, the issue of hunting
with dogs has been the subject of debate for many years. Landowners
have long been aware of the prospect that hunting with dogs might
be stopped completelynumerous Private Member's Bills providing
for a ban on hunting have been supported by an overwhelming majority
of MP's in the House of Commons. The regulation of hunting under
Schedule 2 would allow all forms of hunting with dogs to continue,
some forms under licence, others unrestricted. If Schedule 2 is
enacted, a decision will have been taken by Parliament to introduce
regulation of hunting through a licensing system, following a
detailed inquiry (by the Burns Committee), much public debate,
and detailed consideration in Parliament itself.

22. While the Government accepts that Article
1 of Protocol 1 imports a requirement to pay compensation in most
cases involving deprivation of property, it is satisfied that
there is no similar requirement in relation to measures constituting
a control of the use of property.

23. As explained at paragraphs 36 to 43
below, the Government considers that the interference with the
peaceful enjoyment of possessions which is inherent in the prohibition
on hunting provided for in Schedule 3 is justifiable in striking
a fair balance between the rights of the individual and the general
interest of the community, notwithstanding the absence of provision
for compensation in that Schedule. It follows that the Government
considers that any interference with the peaceful enjoyment of
possessions such as land which is inherent in the licensing system
provided for in Schedule 2 is also justifiable notwithstanding
the absence of provision for compensation.

2. The implications for the right to property
and possessions of people wishing to hunt on other people's land
under contractual arrangements with them.

(b) Please would you inform the Committee
of your reasons for concluding that Option 2 is compatible with
Article 1 of Protocol No 1, in the light of the absence of any
provision for compensation for loss of a contractual right to
hunt on another person's land.

24. The Government agrees that in some circumstances
contractual rights may be held to constitute a "Possession"
for the purposes of Article 1 of Protocol 1.

25. Again, however, the Government is satisfied
that insofar as there is any interference with a person's use
and enjoyment of such a possession, the regulation of hunting
through the licensing system provided for in Schedule 2 to the
Bill as introduced in the House of Commons involves a control
of use of that possession rather than the deprivation of it.

26. The Government emphasises that there
are numerous occasions on which new legislation necessarily interferes
with existing contractual rights without the individuals affected
being compensated. In the present case, the issue of hunting with
dogs has been the subject of debate for many years. Holders of
contractual hunting rights have long been aware of the prospect
that hunting with dogs might be stopped completelynumerous
Private Member's Bills providing for a ban on hunting have been
supported by an overwhelming majority of MP's in the House of
Commons. In any event, the regulation of hunting under Schedule
2 will allow all forms of hunting with dogs to continue, some
forms under licence, others unrestricted.

27. If Schedule 2 is enacted, a decision
will have been taken by Parliament to introduce regulation of
hunting through a licensing system, following a detailed inquiry
(by the Burns Committee), much public debate and detailed consideration
in Parliament itself.

28. While the Government accepts that Article
1 of Protocol 1 imports a requirement to pay compensation in most
cases involving deprivation of property, it is satisfied that
there is no similar requirement in relation to measures constituting
a control of the use of property.

29. As explained at paragraphs 36 to 43
below, the Government considers that the interference with the
peaceful enjoyment of possessions which is inherent in the prohibition
on hunting provided for in Schedule 3 is justifiable in striking
a fair balance between the rights of the individual and the general
interest of the community, notwithstanding the absence of provision
for compensation in that Schedule. It follows that the Government
considers that any interference with contractual rights which
is inherent in the licensing system provided for in Schedule 2
is also justifiable notwithstanding the absence of provision for
compensation.

3. Powers of Inspection

(c) Please would you inform the Committee
of your reasons for being satisfied that the power of inspection
would be compatible with ECHR Article 8, in the absence of more
detail in the Bill about the extent of and conditions for the
exercise of, the powers of inspection of the Hunting Authority.

30. The powers of inspection of the Hunting
Authority are set out in paragraph 36 of Schedule 2 to the Bill
as introduced in the House of Commons. These powers are limited
to hunting activities, hare coursing events, and animals, equipment
or premises used in connection with such activities or events.
Thus inspections will be directed at hunt premises and land, and
not at dwellings. Insofar as inspections of hunting activities
and hare coursing events are carried out, the Government considers
that Article 8.1 is not engaged in the pursuit of such activities.
In the Government's view, the nature of hunting activities, even
when conducted on private land or by an individual, is essentially
public in nature.

31. If Article 8.1 is engaged in relation
to the Authority's powers of inspection, the Government is satisfied
that any interference can be justified under Article 8.2.

32. Although the requirement that any interference
must be "in accordance with the law" is interpreted
by the European Court of Human Rights as requiring that the law
is clear and accessible, it is also recognised that "whilst
certainty is highly desirable, it may bring in its train excessive
rigidity and the law must be able to keep pace with changing circumstances."[7]
The Government accepts that the powers of inspection provided
for import a degree of discretion to the Authority. However, the
Government is satisfied that this discretion is not inconsistent
with the requirement of clarity and accessibility in circumstances
where excessive rigidity is inappropriate.

33. The purpose of the powers of inspection
is, in the case of a licence holder, to enable the Hunting Authority
to check compliance with codes of conduct and licence conditions,
and in the case of an applicant for a licence, as part of the
assessment of their suitability to hold a licence and their competence
in the activity for which they wish to be licensed. The powers
of inspection are an important part of the Authority's monitoring
and enforcement function. In the Government's view, the nature
of hunting activities and the purpose of the powers of inspection
do not lend themselves to laying down more precisely the times
at which, or the circumstances in which, such inspections should
take place. The Government considers that, apart from the constraints
contained in paragraph 36 of Schedule 2 itself (which limits the
powers to hunting activities, hare coursing events, and animals,
equipment or premises used in connection with such activities
or events), it is appropriate for the manner of exercising the
powers of inspection to be dealt with administratively, by means
of training and guidance issued from time to time by the Authority
to its inspectors.

34. The Authority (both itself and through
persons appointed as inspectors), as a public authority, will
be obliged under section 6 of the Human Rights Act 1998 not to
act in a way which is incompatible with the Convention rights.
Thus the powers of inspection will have to be conducted in a reasonable
and proportionate manner.

35. In these circumstances the Government
is satisfied that the powers of inspection are compatible with
ECHR Article 8.

OPTION 3: PROHIBITIONOF HUNTING

4. Economic and property implications of losing
the freedom to hunt

(d) Please would you inform the Committee
of your reasons for being satisfied that a ban on hunting would
meet the requirements of Article 1 of Protocol No 1, particularly
in relation to (i) compensation and (ii) maintaining a fair balance
between the interests of the landowner and the general or public
interest. In relation to (ii), it would be helpful to know the
factual or other considerations which were relevant, and particularly
which may point to a greater interest in prohibiting hunting in
the UK than in other European countries which take a different
approach.

36. The Government is satisfied that a ban
on hunting wild mammals with dogs as provided for in Schedule
3 to the Bill as introduced in the House of Commons would be compatible
with Article 1 of Protocol 1 notwithstanding that there is no
provision for the payment of compensation.

37. The Government accepts that a ban on
hunting may be regarded as an interference with the peaceful enjoyment
of a person's possessions, such as their land. However, no-one
will be deprived of his or her possessions as a result of a ban
on hunting; it is merely the use of their possessions which will
be controlled. Owners will retain possession of their land, but
will be restricted in its use. In this respect, the ban on hunting
provided for in Schedule 3 is no different from other laws which
regulate what can be done on both public and private property.

38. Certain forms of hunting with dogs are
excepted from the prohibition on hunting. These exceptions are
set out in Part II of Schedule 3. During Committee Stage of the
Bill, there was support on all sides for widening the exceptions
from the prohibition on hunting. The Committee may be aware that,
as a result, certain amendments to Part II were tabled by the
government, and accepted, at Report stage in the House of Commons.
Therefore, in Part II as amended (and in Part II of the Schedule
to the Bill as introduced in the House of Lords), activities which
are excepted from the prohibition on hunting are:

(i) deer stalking;

(ii) rodent and rabbit hunting;

(iii) stalking and flushing out of foxes
and hares for certain purposes;

39. Any landowner will therefore be able
to conduct such activities notwithstanding the prohibition on
hunting.

40. The Bill (and therefore the prohibition
on hunting provided for in Schedule 3) relates only to hunting
wild mammals with dogs. Other forms of hunting or pest control,
such as shooting or trapping, will be unaffected. Similarly the
shooting of gamebirds (and their retrieval using dogs) will be
unaffected and people will be able to continue to use their land
for other purposes such as drag hunting or other equestrian and
non-equestrian activities.

41. As mentioned earlier, landowners have
long been aware of the prospect of a ban on hunting with dogs,
which has been the subject of public and Parliamentary debate
for many yearsand numerous Private Member's Bills providing
for a ban on hunting have been supported by an overwhelming majority
of MP's in the House of Commons. If this option is enacted, a
decision will have been taken by Parliament to prohibit hunting
(in preference to regulation or self-regulation) following a detailed
inquiry (by the Burns Committee), much public debate, and detailed
consideration in Parliament itself.

42. While the Government accepts that Article
1 of Protocol 1 imports a requirement to pay compensation in most
cases involving deprivation of property, it is satisfied that
there is no similar requirement in relation to measures constituting
a control of the use of property.

43. In the circumstances outlined above,
the Government considers that any interference with the peaceful
enjoyment of possessions such as land which is inherent in the
prohibition on hunting provided for in Schedule 3 is justifiable
in striking a fair balance between the rights of the individual
and the general interest of the community, notwithstanding the
absence of provision for compensation.

44. The Committee has suggested that there
is a greater interest in prohibiting hunting in the UK than other
European countries. In fact, there is no uniform view across the
countries of the Council of Europe as to whether hunting should
be permitted, regulated or banned. A study on the international
perspective was carried out for the Burns Inquiry. The study's
findings are at Appendix 9 to the Burns Report of which a copy
is attached. The Committee will note that:

(i) hunting with dogs is not practised or
is largely banned in Spain, Belgium, Germany, Sweden, Denmark,
Finland and Norway;

(ii) hunting is regulated in France, Portugal
and Italy; and

(iii) hunting is subject to a system of self-regulation
in Ireland, Scotland and (currently) England and Wales.

5. Right to Respect for Private Life.

(e) Please would you (i) inform the Committee
whether you consider that Article 8.1 is engaged, and (ii) if
it is engaged, inform the Committee of the factual or other considerations
which you consider to be relevant to the ability of a ban to meet
the requirements of Article 8.2, particularly which may point
to a greater interest in prohibiting hunting in the UK than in
other European countries which take a different approach.

45. The Government considers that Article
8.1 is not engaged. In the Government's view, the nature of hunting
activities, even when conducted on private land or by an individual,
is essentially public in nature.

46. Even if Article 8.1 is engaged, the
Government is satisfied that a prohibition on hunting can be justified
under Article 8.2 as being in accordance with the law and necessary
in a democratic society for the protection of morals.

47. The Government considers that Schedule
3 to the Bill is sufficiently clear and accessible so as to meet
the requirement that the interference is "in accordance with
the law".

48. If Parliament enacts a ban on hunting,
it would put an end to practices which Parliament considers to
be at variance with the concept of morals in this country.

49. In determining what is "necessary
in a democratic society" for the protection of morals, the
European Court of Human Rights allows Member States a wide margin
of appreciation. As mentioned above, there is no uniform view
across the Council of Europe as to whether hunting should be permitted,
regulated or banned. Thus, hunting with dogs is not practised
or is largely banned in Spain, Belgium, Germany, Sweden, Denmark,
Finland and Norway, it is regulated in France, Portugal and Italy,
and it is subject to a system of self-regulation in Ireland, Scotland
and (currently) England and Wales.

50. While the concept of margin of appreciation
does not apply as such to domestic courts, the Government is satisfied
that this is a case in which the courts would be likely to afford
Parliament a discretionary area of judgement. If Schedule 3 is
enacted, the imposition of a ban in England and Wales will have
been determined by Parliament following an extensive Inquiry by
the Burns Committee, much public debate, and a thorough consideration
of the issues in Parliament itself.

51. Finally, the Government considers that
the terms of the prohibition as set out in Schedule 3 are proportionate
in that there are a number of exceptions to the prohibition (set
out in Part II of Schedule 3) which are designed to meet the concerns
of landowners, farmers and gamekeepers in relation to pest control
and wildlife management.

6. Representations

52. The Committee asked what representations
the Home Secretary has received in connection with the Bill in
relation to human rights issues and to what specific points these
representations were directed.

53. The Home Secretary is aware of the representations
made to the Burns Committee by Deadline 2000 (who support a ban
on hunting) and the Countryside Alliance. These are summarised
at 10.5 to 10.17 of the Burns Report (copy attached).

54. Deadline 2000 submitted that a ban on
hunting broadly in the terms of Schedule 3 was fully compatible
with the ECHR. The Countryside Alliance submitted that a ban would
be incompatible with the ECHR. Their representations were mainly
directed towards the compatibility of a ban with Article 8 and
with Article 1 of Protocol 1. The Burns Committee did not express
an opinion on whether any ECHR challenge would succeed.

55. The chairman of the Countryside Alliance
has suggested in correspondence to the Home Secretary that a Bill
containing a ban option would not be compatible with the ECHR.
His comments were in general terms, they were not directed at
any of the Convention rights specifically.